Anthony Bruce Camillo, DAB CR5877 (2021)

DECISION

I affirm the ten-year exclusion of Anthony Bruce Camillo (Petitioner) from participation in all federal health programs. 

I.  Background

In a September 30, 2019 notice, the Inspector General (IG) of the United States Department of Health and Human Services (HHS) informed Petitioner that she was excluding him from participation in all federal health care programs under section 1128(a)(1) of the Social Security Act (42 U.S.C. § 1320a-7(a)(1)) for a period of 15 years due to his felony conviction in the United States District Court for the Eastern District of Missouri (District Court) of a criminal offense related to the delivery of an item or service under the Medicare or a state health care program, including the performance of management or administrative services relating to the delivery of items or services, under any such program.  IG Exhibit (Ex.) 1 at 1.  The IG informed Petitioner that the following aggravating circumstances justified an exclusion period greater than five years: 

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1. The acts resulting in the conviction, or similar acts, caused, or were intended to cause, a financial loss to a government agency or program or to one or more entities of $50,000 or more.  The court ordered Petitioner to pay approximately $3,469,800 in restitution.
2. The acts that resulted in the conviction, or similar acts, were committed over a period of one year or more.  The acts occurred from about 2009 to about 2016.
3. The sentence imposed by the court included incarceration.  The court sentenced Petitioner to 30 months of incarceration.

IG Ex. 1 at 2. 

Petitioner requested a hearing to dispute the exclusion.  In his hearing request, Petitioner indicated that he was incarcerated and could not access the Departmental Appeals Board’s electronic filing system (DAB E-File).  Petitioner “request[ed] U.S. mail for all correspondence in this case” to the prison’s address.  Hearing Req. at 1. 

The Civil Remedies Division (CRD) acknowledged receipt of the hearing request, issued my Standing Prehearing Order, and arranged for a phone call with the Federal Bureau of Prisons so that I could hold a prehearing conference.  On December 19, 2019, I held a telephonic prehearing conference with IG counsel and Petitioner, who represented himself.  My December 20, 2019 Order Following Prehearing Conference and Setting Initial Schedule for Prehearing Submissions summarized the matters discussed at the conference.  During the conference, Petitioner stated that he wanted to confer with the IG’s counsel about joint stipulations regarding undisputed facts.  I indicated that Petitioner could include any joint stipulations with his prehearing exchange.  I also granted Petitioner’s request to make all filings in this case by mail.  Further, I stated that the IG and CRD would send documents to Petitioner by mail.  Because Petitioner knew that he would be transferred to another prison facility shortly, I withheld setting prehearing submission deadlines until Petitioner had a new address to ensure that he would receive the IG’s submission.  I directed that Petitioner notify CRD by letter as soon as he arrived at the new facility. 

Petitioner notified CRD of his new address and, on February 7, 2020, I ordered the IG to file a prehearing exchange by March 13, 2020, and Petitioner to file an exchange by May 1, 2020.  The IG timely filed an exchange consisting of a brief (IG Br.) and five proposed exhibits (IG Exs. 1-5).  However, shortly after that, the building housing CRD’s offices was closed due to the COVID-19 pandemic and CRD personnel were unable to retrieve mail. 

In June 2020, designated CRD personnel began to reenter the building to check for mail.  CRD personnel found that Petitioner had sent a March 25, 2020 letter asking the IG to

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stipulate to various facts.  CRD personnel also found an April 9, 2020 letter from Petitioner requesting an extension of time to file his prehearing exchange.  Petitioner stated in the April 9 letter that his access to information, emails, and writing materials had been restricted.  He also had not received answers from the IG as to his proposed stipulations, and he needed time for appropriate discovery based on the IG’s answers to the stipulation questions.  Petitioner did not indicate that his address would change in the future.  CRD personnel uploaded the letter and proposed stipulations to DAB E-File on June 22, 2020. 

On June 26, 2020, I issued an Order Granting Extension in which I ordered the following: 

1. By July 17, 2020, the IG will either submit its responses to the proposed stipulations or file notice that the IG does not intend to voluntarily stipulate to any of the proposed stipulations.
2. Petitioner’s apparent and belated request for discovery is denied.  When agreeing to a prehearing exchange schedule at the prehearing conference, Petitioner did not previously indicate that he intended to seek discovery and the original submission schedule did not include discovery.  In addition, the IG has already submitted the exhibits on which the exclusion and length of exclusion are based with her prehearing exchange; therefore, Petitioner is likely in possession of most, if not all, of the documents the IG has concerning his criminal conviction.
3. Petitioner will submit his prehearing exchange by August 10, 2020. 
4. The IG may submit a reply (or indicate no reply will be submitted) within two weeks of receiving Petitioner’s prehearing exchange. 

CRD uploaded this order to DAB E-File and mailed a copy to Petitioner at the address he provided. 

The IG timely filed a response in which the IG refused to stipulate to any of the facts Petitioner stated in his proposed list of stipulations.  CRD did not timely receive Petitioner’s prehearing exchange.  On September 4, 2020, CRD personnel received back from the U.S. Postal Service the June 26, 2020 Order mailed to Petitioner.  CRD personnel searched the Federal Bureau of Prisons inmate locater website, which showed Petitioner now at a Residential Reentry Management Field Office.  Calls to that office resulted only in an automated response.  However, the Federal Bureau of Prisons’ website gave a general address for the field office. 

On September 11, 2020, I issued an Order to Show Cause (OSC) in which I indicated that it appeared Petitioner has abandoned his hearing request.  In the OSC, I required Petitioner to file his prehearing exchange by October 16, 2020, and contact CRD staff by

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email if Petitioner now had access to email.  CRD sent the OSC to the address for the Federal Bureau of Prison’s field office. 

On September 21, 2020, Petitioner emailed CRD staff stating that he was now on home confinement and providing his address.  Petitioner also disagreed that he had failed to preserve his right to discovery and abandoned the hearing request.  Petitioner further indicated that he was upset that IG counsel had made alleged personal attacks against him in her brief and that I had failed to admonish counsel.  He stated: 

Your Honor left the impression with me that he was both fair and objective however the omission of memory about the discussion of stipulations vs discovery is of concern.  Likewise I was not impressed with the personal attack and comments of IG Counsel . . . [i]n her brief or the fact she was not admonished by his Honor for making such attacks.  People hear horror stories of defendants taking cases personal and resorting to violence yet IG [Counsel] is allowed to stoke the fire.  Shame on the system that allows this.

DAB E-File Document No. 14.  Finally, Petitioner indicated that he did not have access to all of the documents in the record of this case. 

CRD staff promptly assisted Petitioner with registering for and accessing DAB E-File. 

On October 1, 2020, Petitioner requested 1) an extension of time to file his prehearing exchange, 2) permission to engage in discovery, and 3) the imposition of sanctions on IG counsel for calling Petitioner a dishonest person.  The IG opposed Petitioner’s requests for discovery and sanctions. 

In an October 21, 2020 Order, I discharged the OSC, permitted Petitioner to serve discovery requests on the IG because Petitioner was representing himself in these proceedings, and denied Petitioner’s request for sanctions on IG counsel, explaining that Petitioner misinterpreted counsel’s legal argument as a personal attack.  Finally, I warned Petitioner against any future allusions to violence in his filings: 

In recent years, this nation has witnessed acts of violence perpetrated on members of the federal judiciary.  The adjudication of this proceeding will not be influenced by threat.  I will consider any further allusions to “horror stories” of violence committed by defendants in proceedings to be per se interference with the orderly and fair conduct of this proceeding subjecting Petitioner’s case to dismissal.  42 C.F.R. § 1005.14(a)(5).

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October 21, 2020 Order at 5.  With the Order, I provided copies of the regulations applicable to this case. 

Petitioner timely served nine discovery requests on the IG.  The IG moved for a protective order and Petitioner opposed that motion.  On January 11, 2021, I granted the protective order.  In that January 11 Order, I also established a due date by which Petitioner was to file his prehearing exchange. 

Petitioner’s discovery generally appears to have been directed at an effort to obtain evidence to show that he sufficiently cooperated with prosecutors and thus deserves a reduction in the length of exclusion.  As a result of the IG’s efforts to comply with Petitioner’s discovery requests in this case, the IG obtained information showing that Petitioner’s cooperation with law enforcement resulted in the conviction of other individuals.  The IG concluded that a mitigating factor exists in this case and issued an amendment to the exclusion notice.  Specifically, the IG submitted an email from an assistant United States attorney (AUSA) explaining the assistance that Petitioner provided in relation to the prosecution of Petitioner’s eight co-defendants as well as an amendment to the exclusion notice, which reduced the length of exclusion to ten years based on finding a mitigating factor at 42 C.F.R. § 1001.102(c)(3)(i).  IG Exs. 6-7.  In my January 11, 2021 Order, I concluded that the IG issued this amendment to the length of exclusion more than 15 days before the prehearing exchange process in this case had been completed; therefore, the IG’s amendment was effective and Petitioner’s length of exclusion would be ten years in length, unless I concluded that such a length is unreasonable.  42 C.F.R. § 1001.2002(e).  

Petitioner timely filed his prehearing exchange, which consisted of a brief (P. Br.) and fourteen proposed exhibits (P. Exs. 1-14).  The IG filed a reply brief (IG Reply), which included objections to Petitioner Exhibits 1 through 8.  Petitioner responded to those objections (P. Response). 

In a March 31, 2021 Order, I ruled on the IG’s evidentiary objections, sustaining the objections to Petitioner Exhibits 1 through 3 but overruling the other objections.  Therefore, I admitted IG Exhibits 1 through 7 and Petitioner Exhibits 4 through 14. 

In addition, I interpreted Petitioner’s statements in filings subsequent to my issuance of a protective order as a request for reconsideration of that order.  On reconsideration, I concluded that the protective order was appropriate as to all but one of the enumerated requests.  Therefore, in the March 31 Order, I directed the IG to upload documents responsive to Petitioner’s seventh discovery request, which stated: 

Copies of sentences, exclusions and fines imposed upon the following defendants in Federal court:  Thom McCormik, Kazim Meo, Dr Devon Golding, Rehan Rana, Reuben

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Goodwin, Dwight McTizic, Nicole McTizic, Azeem Meo, Bob Sommerfeld and Philip Jones.  Relevant to show cause for mitigating circumstances of downward movement of exclusion based on cooperation and information leading to arrest, convictions and fines and exclusion of others.

Finally, in the March 31 Order, I gave notice that I may consider Petitioner’s cooperation with prosecutors as stated in the following three published court opinions: 

• United States v. Golding, 972 F.3d 1002 (8th Cir. 2020).
• United States v. Goodwin, 974 F.3d 872 (8th Cir. 2020).
• United States v. McTizic, 972 F.3d 994 (8th Cir. 2020).

I gave the parties an opportunity to object but neither did. 

The IG uploaded documents responsive to Petitioner’s seventh discovery request.  See DAB E-File Document Nos. 46a, 48a.  Subsequently, Petitioner filed a May 5, 2021 Motion to Include Discovery, in which Petitioner requested that I admit into the record the documents produced by the IG.  Petitioner also provided additional argument concerning the merits of his case.  The IG filed a response on May 20, 2021, in which the IG did not oppose admission of the documents she produced.  The IG provided further argument in support of her case.

I admit the documents located in DAB E-File Document Nos. 46a and 48a as substantive exhibits.  Because they are not formally marked as exhibits, I will cite them in this decision by their DAB E-File document numbers.  

II.  Decision Rendered on the Written Record

Neither party has any witnesses to offer, and both parties indicated that they do not believe an evidentiary hearing is necessary in this case.  IG Br. at 8; P. Br. at 7.  Therefore, I issue this decision based on the written record.  Standing Prehearing Order ¶ 16; see 42 C.F.R. § 1005.6(b)(5). 

III.  Issues

1) Whether the IG properly excluded Petitioner under 42 U.S.C. § 1320a-7(a)(1). 

2) If so, whether the ten-year length of exclusion imposed is unreasonable.

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IV.  Jurisdiction

I have jurisdiction to adjudicate this case.  42 U.S.C. § 1320a-7(f)(1); 42 C.F.R. §§ 1001.2007, 1005.2.

V.  Findings of Fact, Conclusions of Law, and Analysis

The Secretary of Health and Human Services (Secretary) must exclude an individual from participation in all federally funded health care programs when that individual “has been convicted of a criminal offense related to the delivery of an item or service under subchapter XVIII [of the Social Security Act] or under any State health care program.”  42 U.S.C. § 1320a-7(a)(1).  The Secretary has interpreted this statute to mean that he must exclude an individual who “[h]as been convicted of a criminal offense related to the delivery of an item or service under Medicare or a State health care program, including the performance of management or administrative services relating to the delivery of items or services under any such program.”  42 C.F.R. § 1001.101(a).  A “State health care program” includes a state Medicaid program approved under title XIX of the Social Security Act.  42 C.F.R. § 1000.10. 

Therefore, for the purposes of this case, the two essential elements to support a mandatory exclusion are:  (1) the excluded individual must have been convicted of an offense; and (2) the offense must be related to the delivery of a health care item or service under the Medicare or Medicaid programs.

If an individual has been convicted of a crime that requires mandatory exclusion, then the Secretary must exclude the individual for at least five years.  42 U.S.C. § 1320a‑7(c)(3)(B).  To implement this provision, the Secretary established, by regulation, a list of aggravating and mitigating factors that must be considered when determining whether the length of a mandatory exclusion should exceed five years.  See 42 C.F.R. § 1001.102(b)-(c). 

The record supports the IG’s mandatory exclusion in this case and the existence of the three aggravating factors identified by the IG in her exclusion notice.  Further, the record supports the existence of one mitigating factor.  Based on a qualitative analysis of those factors, I conclude that the IG’s imposition of a ten-year length of exclusion is not unreasonable. 

1. Petitioner was convicted by the District Court of three criminal offenses. 

On July 5, 2017, a Grand Jury convened by the District Court returned a 31-Count Indictment charging Petitioner, AMS Medical Laboratory, Inc. (AMS), Devon Golding, M.D., Reuben Goodwin, Phillip Jones, Dwight McTizic, Nicole McTizic, Kazim Meo,

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Rehan Rana, and Robert Sommerfeld with health care fraud, illegal kickbacks, and conspiracy.  IG Ex. 5.  On March 26, 2018, Petitioner signed a Guilty Plea Agreement in which he agreed to voluntarily plead guilty to Counts 1, 7, and 28 of the Indictment in exchange for the dismissal of Counts 3-6, 8-27, and 29-31.  IG Ex. 2 at 1, 35.  Also on March 26, 2018, the District Court held a hearing at which Petitioner withdrew his plea of not guilty to Counts 1, 7, and 28, and entered a plea of guilty.  IG Ex. 4 at 65.  At the hearing, the District Court accepted Petitioner’s guilty plea.  IG Ex. 4 at 66. 

On July 8, 2019, the District Court issued a Judgment in a Criminal Case indicating that Petitioner “pleaded guilty to count(s) one, seven and twenty-eight of the indictment on March 26, 2018” and that Petitioner “is adjudicated guilty” of the following offenses: 

• Count 1 – Conspiracy to Commit Offenses Against the United States (18 U.S.C. § 371);
• Count 7 – Conspiracy to Commit Offenses Against the United States (18 U.S.C. § 371); and
• Count 28 – Health Care Fraud (18 U.S.C. § 1347(a)(2)). 

IG Ex. 3 at 1.  The District Court sentenced Petitioner to 30 months in prison and to pay restitution to the Centers for Medicare & Medicaid Services (CMS) and Missouri Health Net (Medicaid) in the amount of $3,469,810.  IG Ex. 3 at 2, 6. 

For exclusion purposes, the word “convicted” means that a judgment of conviction has been entered against an individual by a federal, state or local court, or a federal, state or local court has accepted a guilty plea by an individual.  42 U.S.C. § 1320a-7(i)(1), (3). 

As indicated above, the record is clear that Petitioner was convicted of criminal offenses for purposes of exclusion, and Petitioner does not dispute this.  P. Br. at 3. 

2. The criminal offenses for which Petitioner was convicted were related to the delivery of a health care item or service under Medicare and a state Medicaid program.  42 U.S.C. § 1320a‑7(a)(1).

The IG must exclude an individual from participation in any federal health care program if that individual was convicted under federal or state law of a criminal offense related to the delivery of an item or service under the Medicare or Medicaid program.  42 U.S.C. § 1320a‑7(a)(1).  In this case, the IG asserts that there is a connection between Petitioner’s criminal offenses and the delivery of items or services under the Medicare and Medicaid programs as follows: 

Specifically, from 2009 to 2016, Petitioner admitted that he engaged in a scheme to solicit, offer, give, or receive “illegal kickbacks in exchange for referrals of patients or specimens

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to” laboratories and submitted or caused the submission of “claims to the Medicare and Medicaid Programs for tests of specimens obtained by illegal kickbacks.”  Additionally, Petitioner submitted or caused the submission of “tests performed by excluded persons or businesses” and “fraudulently conceal[ed] from Medicaid that tests were performed by reference laboratories and [then] billed [them] in violation of Medicaid and Medicare regulations.”  Petitioner was ordered to pay $3,469,810 in restitution to the Medicare and Medicaid programs, which he admitted was specifically attributable to this conduct.  Thus, Petitioner was convicted of criminal offenses that are related to the delivery of items or services under the Medicare and Medicaid programs.

IG Br. at 3-4 (internal citations omitted). 

Petitioner disagrees that his criminal convictions mandate exclusion because he “den[ies] that a crime was committed against the Medicaid or Medicare programs which negates any exclusion.”  P. Br. at 3.  Petitioner disputes that the IG provided documentation that Petitioner defrauded any government payor and points to a settlement agreement (P. Ex. 1, which I excluded as irrelevant) between his family’s laboratory and the Missouri Medicaid program waiving and discharging the laboratory and all its owners and officers from any liability or damages.  P. Br. at 3.  Petitioner also asserts that he and his laboratory properly conducted themselves under the anti-kickback rules applicable to that relevant time period.  P. Br. at 3.  Finally, Petitioner points out that the IG has previously said that the exclusion is not based on Petitioner violating program rules for the Medicare or Medicaid programs and that such an admission by the IG means his criminal offenses could not be related to the delivery of an item or service under the Medicare or Medicaid programs.  P. Br. at 4.

The IG is correct that Petitioner’s convictions are related to the delivery of items and services under the Medicare and Medicaid programs.  The term “related to” in 42 U.S.C. § 1320a-7 simply means that there must be a nexus or common sense connection.  See Quayum v. U.S. Dep’t of Health & Human Servs., 34 F. Supp. 2d 141, 143 (E.D.N.Y. 1998); see also Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (describing the phrase “relating to” in another part of section 1320a-7 as “deliberately expansive words,” “the ordinary meaning of [which] is a broad one,” and one that is not subject to “crabbed and formalistic interpretation”) (internal quotation marks omitted).  As explained below, such a connection exists in this case. 

As an initial matter, I cannot consider any of Petitioner’s arguments and explanations that his conduct and that of his laboratory were legal and that prosecutors incorrectly charged

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him with criminal offenses.  My role in this proceeding is not to review or reconsider the judgment issued by the District Court in Petitioner’s criminal case.  The regulations state: 

When the exclusion is based on the existence of a criminal conviction . . . by [a] Federal . . . court, . . . the basis for the underlying conviction . . . is not reviewable and the individual or entity may not collaterally attack it either on substantive or procedural grounds in this appeal. 

42 C.F.R. § 1001.2007(d).  While Petitioner believes himself wronged and pressured into pleading guilty, I have no authority to overturn the exclusion based on those assertions. 

Regarding the question as to whether Petitioner’s offenses were related to the delivery of items and services under the Medicare or Medicaid program, Petitioner admitted to the following facts in the Guilty Plea Agreement, which demonstrate in detail that Petitioner’s laboratory work heavily involved billing the Medicare and Medicaid programs for analyzing specimen samples: 

• Petitioner worked in medical testing laboratories for over 30 years as a phlebotomist, laboratory supervisor, manager, director, and owner (IG Ex. 2 at 6).
• Based on a conspiracy among Petitioner, Devon Golding, Kazim Meo, and Rehan Rana, a laboratory called Allegiance was incorporated in October 2009, with Petitioner as a 49% owner, a director, and as president (IG Ex. 2 at 6-7).
• In March 2010, the IG excluded an unindicted co-conspirator, Azeem Meo, from participating in any capacity in the Medicare and Medicaid programs (IG Ex. 2 at 7).
• From about 2009 to about 2012, Petitioner and the other conspirators “participated in a conspiracy to defraud the United States and to commit offenses against the United States.  The purpose of the conspiracy was for [Petitioner] and his co-conspirators (IG Ex. 2 at 7-8):

• to conceal Azeem Meo’s illegal involvement and participation in Allegiance;
• to solicit, offer, pay, and receive illegal kickbacks for referring, arranging for, and recommending that blood, urine, and other specimens be sent to Allegiance;
• to receive Medicare and Medicaid reimbursement for testing specimens that were obtained in exchange for illegal remunerations; and

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• to receive and distribute the proceeds from the conspiracy and to benefit financially from the conspiracy.

• After the IG excluded Azeem Meo, Azeem Meo continued to participate in Allegiance through the creation of a new company called Hamayshaa, Inc. (IG Ex. 2 at 8).
• From 2010 to 2012, Petitioner and the co-conspirators entered into agreements to pay for each specimen referred or sent to Allegiance for testing (IG Ex. 2 at 11). 
• On or about April 8, 2011, Petitioner agreed to pay LabTest, LLC a monthly fee based on the total revenues generated by specimens sent to Allegiance, and Allegiance ultimately paid LabTest over $18,000 (IG Ex. 2 at 11).
• On or about June 22, 2012, Petitioner signed a contract with C.S., doing business as Beyond Medicine, LLC, to provide specimens from various sources, and from about June 2012 to about October 2012, Allegiance paid Beyond Medicine over $20,000 for specimens sent to Allegiance (IG Ex. 2 at 12).
• From in or about January 2010 to in or about April 2012, Dr. Golding received payments in return for sending laboratory specimens to Allegiance (IG Ex. 2 at 12).
• In or about October 2012, Petitioner’s daughter opened AMS; however, Petitioner identified himself at various times as owner, president, technical consultant, technical director, or managing partner of AMS (IG Ex. 2 at 13).
• In or about October 2012, a Medicare provider application was filed and eventually approved (IG Ex. 2 at 13-14).
• From in or about 2012 to in or about 2016, Petitioner, AMS, Reuben Goodwin, Phillip Jones, Dwight McTizic, Nicole McTizic, Robert Sommerfeld, and other unindicted co-conspirators participated in a conspiracy with the following purpose (IG Ex. 2 at 14):  

• to solicit, offer, pay and receive illegal kickbacks in return for referring, recommending, and arranging for blood, urine, and other specimens to be sent to AMS;
• to receive reimbursement from Medicare and Medicaid for testing specimens that were obtained as a result of illegal kickbacks; and

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• to receive and distribute the proceeds of the conspiracy and to benefit financially from the conspiracy. 

• Petitioner and the co-conspirators entered into fake contracts that falsely characterized kickback payments for the referral of specimens as payment for services provided to AMS (IG Ex. 2 at 15).
• Petitioner and some of the co-conspirators arranged for an agreement between AMS and a non-profit entity named Southwest Disability Services (SWDS) in which AMS would split profits with co-conspirator Phillip Jones if Jones referred specimens to AMS.  “The agreement stated that Medicare and Indiana Medicaid paid AMS $602 and $602.92 respectively for certain urine tests.  AMS’s costs for testing each specimen was $209.00.  According to the SWDS Agreement, Phillip Jones would receive $196.00 (50% of the profit) per specimen that he referred or sent to AMS.”  (IG Ex. 2 at 16).
• During 2014 to 2015, AMS and Petitioner paid SWDS for specimens referred or sent to AMS, with AMS paying about $105,000 for specimens referred in 2014 (IG Ex. 2 at 17). 
• In July 2013, Petitioner offered to pay 50% of the profit for each specimen referred to AMS by True Care International Services, Inc. (True Care), an entity operated by Dwight and Nicole McTizic (IG Ex. 2 at 17). 
• Between October 2013 and December 2015, Petitioner and AMS paid Dwight and Nicole McTizic $114,690 for specimens they referred or sent to AMS (IG Ex. 2 at 18-19). 
• On or about November 28, 2014, the IG excluded Dwight McTizic from participating in the Medicare or Medicaid programs for eight years, but McTizic continued to participate with AMS and receive payments through 2015 (IG Ex. 2 at 18-19). 
• Petitioner and AMS paid a number of other people and entities for the referral of specimens from 2015 to 2016 (IG Ex. 2 at 19-23). 
• Petitioner admitted, in a section of the Guilty Plea Agreement entitled “Submission of False Reimbursement Claims,” that “[Petitioner] and his co-conspirators submitted and caused to be submitted reimbursement claims to Medicare and Medicaid for tests performed on the specimens procured by illegal kickbacks.  [Petitioner] and his co-conspirators knew that compliance with the

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• [Anti-Kickback Statute] was a condition of payment and that Medicare and Medicaid would not pay for services procured by illegal kickbacks.”  (IG Ex. 2 at 23-24). 
• Petitioner stipulated that the loss resulting from the above-described conspiracies and fraud schemes was $3,469,810 (IG Ex. 2 at 27). 

The District Court went over the facts to which Petitioner stipulated in the Guilty Plea Agreement during the plea hearing and Petitioner, under oath, admitted all those facts.  IG Ex. 4 at 20-46.  At the plea hearing, he fully admitted the conspiracy to commit fraud on the Medicare and Medicaid programs.

MS. MCMURTRY:  Your Honor, the Government will establish that [Petitioner] knew that Medicaid would not pay for the -- under the circumstances that he just described, because he had been advised of that by his billing services and so he knew that he could not bill for a service that was provided by this other lab.

THE COURT:  Is that in fact true?

THE DEFENDANT:  I agree with that, yes, Your Honor.

THE COURT:  Those claims were nevertheless submitted in violation of the Medicaid and Medicare regulations?

THE DEFENDANT:  Yes, Your Honor.

* * * * *

THE COURT:  And did you in fact enter into these conspiracies, sir?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  And do you acknowledge that bills in fact are submitted, that payments were made, and therefore that one or more overt acts were in fact done in furtherance of each of these conspiracies?

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THE DEFENDANT: Yes, Your Honor.

THE COURT:  And did you in fact know that the conduct in which you were engaging involved material misstatements to the Medicare and Medicaid programs such that they constituted a fraudulent scheme?

THE DEFENDANT:  Yes, Your Honor.

IG Ex. 4 at 44-46. 

Further, Petitioner admitted from the outset of this case that his criminal conduct involved providing laboratory services to Medicare beneficiaries for use by the beneficiaries’ physicians.  Hearing Req. at 1 (admitting that his laboratory services “were rendered to HHS patients.  Results were used in the treatment of patients by their ordering physicians.”). 

Petitioner was convicted of health care fraud and the facts stated above show, beyond doubt, that Petitioner’s criminal offenses related to the delivery of items or services in the Medicare or Medicaid programs.  Submitting a false claim to Medicaid is clearly “related to” the delivery of an item or service under a state health care program.  See Travers v. Shalala, 20 F.3d 993, 998 (9th Cir. 1994) (conviction for filing claims with the Medicaid program is “a program‑related offense” and “such financial misconduct is exactly what Congress sought to discourage” through imposing exclusions.); Kahn v. Inspector Gen. of the U.S. Dep’t of Health and Human Servs., 848 F. Supp. 432, 434, 436 (S.D.N.Y. 1994) (concluding that a podiatrist’s conviction for attempted grand larceny was program related for purposes of an exclusion because it was related to the filing of false Medicaid claims); Greene v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990) (“There is no question that Mr. Greene’s crime [of filing false claims] resulted in a Medicaid overpayment and was a program-related crime triggering the mandatory exclusion under Section 1320a‑7(a).”).  Further, Petitioner admitted an approximate loss to Medicare and Medicaid of $3.5 million dollars, an amount that the District Court ordered Petitioner to pay in restitution to CMS and Missouri’s Medicaid agency.  IG Ex. 3 at 6.  If there had been any doubt that Petitioner’s criminal offenses were related to providing items or services for the Medicare and Medicaid programs, the admission of loss and the order to pay restitution to those programs dispels such doubt.  

Accordingly, I conclude that the criminal conduct for which Petitioner was convicted was related to the delivery of a health care item or service under a state health care program.  See 42 U.S.C. § 1320a‑7(a)(1).  Therefore, the record fully supports Petitioner’s mandatory exclusion.

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3. Because the record supports the IG’s determination that a mandatory exclusion must be imposed under 42 U.S.C. § 1320a-7(a)(1), Petitioner must be excluded for a minimum of five years.

I conclude that Petitioner’s criminal convictions meet the elements for a mandatory exclusion under 42 U.S.C. § 1320a-7(a)(1).  Therefore, Petitioner must be excluded for at least five years.  42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.102(a). 

4. There are three aggravating factors and one mitigating factor present in this case that effect the length of exclusion in this case.  

As indicated earlier, the length of exclusion may be longer than five years.  If the IG imposes a length of exclusion that is longer than five years, then it must be based on considering all relevant aggravating and mitigating factors listed in the regulations.  42 C.F.R. § 1001.102(b), (c). 

The regulations state that the preponderance of the evidence standard of proof is employed in exclusion cases.  42 C.F.R. § 1005.15(d).  The regulations provide administrative law judges with the discretion to allocate who has the burden of proof in most exclusion cases.  42 C.F.R. § 1005.15(c).  I gave notice at the beginning of these proceedings that the IG had the burden of proving the existence of all alleged aggravating factors and Petitioner had the burden of proving all mitigating factors.  Standing Prehearing Order ¶ 6. 

Further, the regulations provide a deferential standard when reviewing the IG’s determination of the length of exclusion.  An administrative law judge may only determine whether that length is “unreasonable.”  42 C.F.R. § 1001.2007(a)(1)(ii). 

In the present case, the IG, in its exclusion notice and amendment to the exclusion notice, indicated that there were three aggravating factors and one mitigating factor supporting a ten-year length of exclusion.  IG Exs. 1, 7; 42 C.F.R. § 1001.2002(c)(2).  Petitioner asserts in this proceeding that an additional mitigating factor is present in this case.  As discussed below, the record supports the existence of three aggravating factors and one mitigating factor. 

5. The District Court ordered Petitioner to pay CMS (i.e., Medicare) $3,018,042 and Missouri Health Net (i.e., Medicaid) $451,768 in restitution.  Therefore, Petitioner’s acts resulting in conviction involved a financial loss to the Medicare and Medicaid programs in excess of $50,000, which is an aggravating factor under 42 C.F.R. § 1001.102(b)(1). 

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The IG provided evidence that demonstrates the acts resulting in Petitioner’s criminal conviction caused, or were intended to cause, a financial loss to a government program of $50,000 or more.  See 42 C.F.R. § 1001.102(b)(1).  Specifically, in the Judgment in a Criminal Case, the District Court ordered Petitioner to pay total restitution in the amount of $3,469,810 to the federal and state agencies responsible for the Medicare and Medicaid programs, CMS and Missouri Health, respectively.  IG Ex. 3 at 6.

In his request for hearing, Petitioner disputed this aggravating factor.  He stated: 

The acts which I plead[ed] guilty to did not cause “loss” to HHS or the government of the U.S.  The nature of the act was defined as billing for services provided by a reference lab, not a provider of Medicare or Medicaid.  At no time were these tests questioned as to their medical necessity, or that they were ordered by physicians.  Services were rendered to HHS patients.  Results were used in the treatment of patients by their ordering physicians.  HHS would ask that the testing was done for free and that is unreasonable.  If I would not have billed for services someone else would have.  The $3,469,800 restitution is and was punitive and not actual. 

Hearing Req. at 1. 

However, in Petitioner’s Guilty Plea Agreement, he expressly stipulated to a loss resulting from the above-described conspiracies and fraud schemes was $3,469,810, and that Petitioner would pay restitution to the victims in that amount.  IG Ex. 2 at 27, 32.  Although Petitioner now repudiates his admission to this loss and other facts in the Guilty Plea Agreement, Petitioner affirmed his admissions in the Guilty Plea Agreement under oath before the District Court.  Relevant here, Petitioner agreed that there was $3,469,810 in loss related to Medicare and Medicaid. 

MS. MCMURTRY:  Your Honor, the Government will establish that [Petitioner] knew that Medicaid would not pay for the -- under the circumstances that he just described, because he had been advised of that by his billing services and so he knew that he could not bill for a service that was provided by this other lab.

THE COURT:  Is that in fact true?

THE DEFENDANT:  I agree with that, yes, Your Honor.

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THE COURT:  Those claims were nevertheless submitted in violation of the Medicaid and Medicare regulations?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  Anything further, Ms. McMurtry?

MS. MCMURTRY:  Nothing further.

THE COURT:  And the stipulation further states that the parties are stipulating that the loss relating from the above described conspiracies and frauds is approximately $3,469,810; do you understand that?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  Do you agree with that, sir?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  Do you have any questions or problems with anything that has been represented here by the prosecutor, sir, other than what we have previously discussed?

THE DEFENDANT: No, Your Honor. 

IG Ex. 4 at 44-45.  Later in that hearing, Petitioner admitted that he agreed to pay restitution in the amount of loss that his criminal conduct created.

THE COURT:  And there are also provisions in this
agreement with respect to restitution and forfeiture and those begin on pages 31 and carry over to page 33 of this agreement. And you understand, sir, that in addition to what we have discussed that you could be ordered to pay restitution; do you understand?

THE DEFENDANT:  Yes, Your Honor.

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THE COURT:  And you understand, sir, that regardless of the accounts of conviction the amount of restitution imposed is going to include all amounts allowed under Section 3663A(b) and the amount of loss agreed to by the parties including all relevant conduct loss; do you understand?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  As we discussed previously, this agreement again recites that the parties are stipulating that the restitution amount is $3,469,810.

THE DEFENDANT:  Yes, Your Honor.

IG Ex. 4 at 55-56.  Finally, Petitioner acknowledged that under the Guilty Plea Agreement, the District Court would add 16 levels under the sentencing guidelines due to loss to the Medicare and Medicaid programs. 

THE COURT:  Now, there are certain paragraphs with respect to the sentencing guidelines, as I said they begin on page 27 and they carry over to page 29. And in this agreement the parties are agreeing that the Base Offense Level where we start counting will be at level six, and to that 16 levels are added because the loss exceeded 1.5 million but did not exceed 3.5 million, and that two additional levels should be added because the offense involved a Government health care program with a loss exceeding one million dollars; do you understand?

THE DEFENDANT:  Yes, Your Honor.

IG Ex. 4 at 51.

Therefore, the IG has met her burden of proving financial loss to a government program of $50,000 or more.  The amount in this case, nearly 70 times the $50,000 threshold, represents a massive loss to the Medicare and Medicaid programs.  This factor lends significant support to a lengthy exclusion. 

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6. Petitioner’s acts that resulted in conviction, or similar acts, were committed for more than one year, i.e., from 2009 to 2016, which is an aggravating factor under 42 C.F.R. § 1001.102(b)(2). 

In its exclusion notice, the IG asserted that the aggravating factor found at 42 C.F.R. § 1001.102(b)(2) (i.e., the acts that resulted in the conviction, or similar acts, were committed over a period of one year or more) was present in this case.  The IG indicated that “[t]he acts occurred from about 2009 to about 2016.”  IG Ex. 1 at 2. 

In his request for hearing, Petitioner disputed the length of time over which his criminal conduct occurred.

Allegation #2 of the OIG: Acts resulting in conviction over a period of time from 2009-2016.
Response: Not True

Allegiance Lab began operation in 2009.  I was a minority owner.  Illegal kickbacks to physicians by my partners began in 2011 and ended that year, after I turned them in to officials of the Department of Justice.  I went on to work with the DOJ under a proffer agreement, which the DOJ did not keep.

AMS Lab began operation in 2012 and ceased in 2016.  The act of billing Medicaid for services provided through a non-provider reference lab, Western Slope, occurred during one year, 2012.  Allegiance and AMS were separate labs and I was charged with separate crimes each lasting less than a year.

Hearing Req. at 1. 

As mentioned above, § 1001.102(b)(2) is the time over which the criminal acts or similar acts were committed.  In this case, the evidentiary basis for determining the length of the criminal and similar acts relevant to this factor are the Guilty Plea Agreement, Petitioner’s admissions to the District Court under oath, and the District Court’s judgment.

Petitioner asserts that the length is limited to two years – 2011 and 2012.  However, the District Court’s findings and Petitioner’s admissions contradict this. 

The District Court’s judgment only provides findings as to when each of Petitioner’s three criminal offenses concluded; however, this provides an initial basis for a range of

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dates:  Count 1 ended in 2012; Count 7 ended in 2016; and Count 28 ended in June 2014.  IG Ex. 3 at 1.  Therefore, the timeframe is more than the two years asserted by Petitioner. 

In the Guilty Plea Agreement, Petitioner admitted that:  “From in or about 2009 to in or about 2012, in the Eastern District of Missouri and elsewhere, [Petitioner], Kazim Meo, Rehan Rana, Dr. Golding, and other un-indicted co-conspirators participated in a conspiracy to defraud the United States and to commit offenses against the United States.”  IG Ex. 2 at 7.  The Guilty Plea Agreement also specified acts related to this overall conspiracy from 2009 to 2012.  IG Ex. 2 at 7-13.  At the plea hearing before the District Court, Petitioner heard the prosecutor summarize the facts from the Guilty Plea Agreement and Petitioner agreed that the conspiracy lasted from 2009 to 2012.

THE COURT: And, [Petitioner], have you heard what has just been stated?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  And so with respect to these actions from 2009 to 2012, did you in fact enter into agreements and arrangements with people to solicit or obtain remuneration for the referral of services or to reduce referrals to with respect to claims to be submitted to Medicare or Medicaid?

THE DEFENDANT:  Yes, Your Honor.

IG Ex. 4 at 29. 

In a similar way, the Guilty Plea Agreement shows that Petitioner admitted the conspiracy involving AMS lasted from 2012 to 2016.  “From in or about 2012 to in or about 2016, in the Eastern District of Missouri and elsewhere, [Petitioner], AMS, Reuben Goodwin, Phillip Jones, Dwight McTizic, Nicole Tizic, Robert Sommerfeld, and other un-indicted co-conspirators participated in a conspiracy to defraud the United States and to commit offense against the United State[s].”  IG Ex. 2 at 14.  The Guilty Plea Agreement also specified acts related to this overall conspiracy from 2012 to 2016.  IG Ex. 2 at 14-26.  At the plea hearing before the District Court, Petitioner heard the prosecutor summarize the facts from the Guilty Plea Agreement and Petitioner agreed with it.  IG Ex. 4 at 41-42. 

I conclude that this aggravating factor supports a significant length of exclusion.  Petitioner’s overall criminal conduct lasted for approximately seven years.  This is seven times longer than minimal length of time required for this to be considered aggravating. 

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7. The District Court sentenced Petitioner to 30 months of incarceration, which is an aggravating factor under 42 C.F.R. § 1001.102(b)(5). 

Petitioner admits that the District Court sentenced Petitioner to 30 months in prison.  IG Ex. 3 at 2; Hearing Req. at 1; 42 C.F.R. § 1001.102(b)(5). 

The length of Petitioner’s prison sentence weighs in favor of an increased exclusion length.  A prison sentence of as little as nine months is relatively substantial period for exclusion purposes.  Jason Hollady, M.D., DAB No. 1855 at 12 (2002).  Petitioner’s 30‑month sentence is more than three times longer than that and represents a substantial period, which indicates the seriousness of Petitioner’s offenses.

8. Petitioner provided significant assistance to criminal prosecutors resulting in the conviction and exclusion of eight individuals, which is a mitigating factor under 42 C.F.R. § 1001.102(c)(3)(i). 

Petitioner asserts that he provided significant assistance to prosecutors that resulted in the conviction and exclusion of ten individuals.  P. Br. at 2, 5.  Petitioner indicates that he met with law enforcement when his business associate, Azeem Meo, would not cease engaging in illegal behavior.  P. Br. at 1.  Petitioner submitted a November 14, 2012 letter from an AUSA setting the ground rules for Petitioner’s assistance to prosecutors.  P. Ex. 12. 

As discussed earlier, Petitioner’s discovery requests resulted in the IG obtaining and submitting proof that his cooperation with prosecutors resulted in the conviction and exclusion of eight individuals.  The IG acknowledged that Petitioner’s cooperation ought to have been considered as a mitigating factor to the length of exclusion under 42 C.F.R. § 1001.102(c)(3)(i).  IG Ex. 7.  The proof that the IG submitted was a statement from the AUSA who signed the November 14, 2012 letter concerning Petitioner’s proffer to prosecutors.  The AUSA indicated: 

[Petitioner’s] cooperation with federal officials resulted in the indictment and subsequent conviction of his eight co-defendants.  Four co-defendants pled guilty before trial, in large part, because of [Petitioner’s] anticipated testimony.  The trials of the remaining four defendants were severed.  As a result, [Petitioner] testified against one co-defendant in one trial and against the other three co-defendants in a second trial.  Because of these felony health care fraud convictions, all were subject to a mandatory period of exclusion.

[Petitioner] did attempt to minimize certain conduct in the second trial and had to be confronted with his prior sworn

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statements.  Nonetheless, the Government concluded that [Petitioner] had provided substantial assistance and filed, under seal, a Section 5K1.1 motion for a downward departure.

IG Ex. 6 at 1. 

The AUSA indicated that Petitioner’s cooperation resulted in the indictment and convictions of his eight co-defendants.  The record reveals that the following individuals were Petitioner’s eight co-defendants:  Devon N. Golding, M.D.; Reuben F. Goodwin, Phillip L. Jones; Dwight McTizic; Nicole McTizic; Kazim A. Meo; Rehan Rana; and Robert J. Sommerfeld.  IG Ex. 5 at 1; P. Exs. 10, 11. 

In addition to the statement of the AUSA, published court opinions corroborate Petitioner’s cooperation with prosecutors and provide additional details. 

The United States Court of Appeals for the Eighth Circuit (Eighth Circuit) indicated that Devon Golding was convicted of one count of conspiracy to commit an offense against the United States and four counts of fraud, which resulted in a sentence of six months imprisonment.  United States v. Golding, 972 F.3d 1002, 1003-1004 (8th Cir. 2020).  The court detailed Petitioner’s involvement in the case: 

Between 2009 and 2012 Dr. Golding referred samples from his patients to be tested at Allegiance, where he served for a period of time as the medical director of the lab.  During this time, Dr. Golding sporadically received checks from Allegiance totaling almost $30,000, allegedly for rent, utilities, medical equipment, and his salary for serving as the medical director.  However, after the co-owner of Allegiance, [Petitioner], approached the government with information about the operations of the lab, it became clear that the payments Dr. Golding received were in fact offered in exchange for his continued referral of samples to the lab which would be submitted to Medicare or Medicaid for reimbursement.

* * * * *

In the following months, each of Dr. Golding’s co-defendants pled guilty to some portion of Counts 1–6.  But Dr. Golding proceeded to a five-day jury trial, resulting in a guilty verdict on all five counts.

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* * * * *

The government presented evidence establishing Dr. Golding entered an agreement with [Petitioner], the part-owner and manager of Allegiance, and eventually others, to create a medical testing lab that made money through illegal kickbacks.  [Petitioner] had approached the government with information regarding Dr. Golding and testified extensively at trial after entering a proffer arrangement and cooperation agreement.  During the trial testimony, [Petitioner] explained how in 2009 he and Dr. Golding agreed to open Allegiance in the basement of the building Dr. Golding owned.  [Petitioner] and Dr. Golding created a business plan by which Dr. Golding could be “involved” in three different ways with the lab while maintaining its independence to test samples from other medical providers.  One plan provision involved Dr. Golding’s attorney serving as part-owner rather than Dr. Golding himself — although [Petitioner] “knew that his attorney would probably be sharing those benefits with [Dr. Golding].”  The second two sources of involvement for Dr. Golding would be payment of a medical director fee ($1,000 per month) and rent for the space ($2,000 per month).  In exchange, Allegiance would receive Dr. Golding’s “goodwill,” that is, Dr. Golding agreed to send his patients to Allegiance for their services.  This “goodwill” or referral of specimens was a condition of the partnership.

The government offered into evidence photocopies of the 22 checks Dr. Golding received from Allegiance from 2009 to 2012.  Several of these checks were signed by [Petitioner] with a memo line indicating they were payment for Dr. Golding’s medical director duties.  [Petitioner] testified that Dr. Golding ceased performing any of his director duties around the time the first of these checks was made out — but the payments continued.  According to [Petitioner], these payments were made “for [Dr. Golding’s] goodwill and [his] sending patients to the laboratory.”  [Petitioner] also explicitly testified he was aware, as early as November of 2009, that federal law prohibited “a provider such as Dr. Golding” from being able to “solicit or receive payment in return for referring his business to a Medicare facility or service.”  Nonetheless, [Petitioner] testified that claims

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from Allegiance were submitted to both Medicare and Medicaid by Allegiance.  [Petitioner] testified Dr. Golding was paid $20 for every specimen sent to Allegiance, including referrals for which Allegiance “actually received reimbursement” from Medicare or Medicaid.

In light of this evidence, we will not disturb the jury’s determination that Dr. Golding was guilty of the conspiracy charge.

Golding, 972 F.3d at 1004-1006.  This court opinion makes it clear that Petitioner approached authorities, cooperated, and extensively testified at the trial for Dr. Golding.  The Eighth Circuit’s summary of Petitioner’s testimony appears to have been part of the reason that it would not disturb the jury’s guilty verdict against Dr. Golding.  Petitioner submitted evidence consistent with the court opinion. 

The Eighth Circuit also issued opinions in the criminal cases of Reuben Goodwin and Dwight McTizic.  The opinions stated that both of them were convicted after jury trials of conspiracy to violate federal health care laws and eleven counts of health care fraud.  United States v. Goodwin, 974 F.3d 872, 873-874 (8th Cir. 2020); United States v. McTizic, 972 F.3d 994, 995 (8th Cir. 2020).  In reviewing the evidence to determine whether to overturn the jury’s verdict, the court discussed Petitioner’s testimony at trial in support of the guilty verdict.  Goodwin, 974 F.3d at 875; McTizic, 972 F.3d at 996-997.

The IG produced documents related to the convictions, sentences, and exclusions of Petitioner’s eight co-defendants.  The following appears to be related to Petitioner’s cooperation with prosecutors: 

• Dwight McTizic

• August 8, 2019 Judgment in a Criminal Case indicating McTizic was found guilty of 12 criminal counts, was sentenced to 28 months of incarceration, and was ordered to pay $396,085.71 in restitution to CMS.  DAB E-File Document No. 46a at 79-81, 85-86; IG Ex. 5 at 17-32.
• November 29, 2019 IG letter excluding McTizic for ten years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($396,000); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2012 to about 2016); and the sentence included incarceration (28 months).  DAB E-File Document No. 46a at 122-123.

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• Devon Golding

• March 6, 2019 Judgment in Criminal Case indicating that Golding was found guilty of five criminal counts, sentenced to six months of incarceration, and was ordered to pay $262,324.02 in restitution to CMS.  DAB E-File Document No. 46a at 26-28, 32; IG Ex. 5 at 7-17. 
• February 20, 2020 IG letter excluding Golding for 15 years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($262,300); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2009 to about 2012); and the sentence included incarceration (six months).  DAB E-File Document No. 46a at 67-68.

• Kazim Meo

• May 20, 2019 Judgment in a Criminal Case indicating Meo pleaded guilty to two counts of the Indictment, was sentenced to four months of incarceration; and was ordered to pay $526,285.37 in restitution to CMS. DAB E-File Document No. 46a at 36-37, 41; IG Ex. 5 at 7-15.
• January 31, 2020 IG letter excluding Meo for eight years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($526,200); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2009 to about 2012); and the sentence included incarceration (4 months).  DAB E-File Document No. 48a.

• Rehan Rana

• August 16, 2019 Judgment in a Criminal Case indicating Rana pleaded guilty to one count of the Indictment, was sentenced to 24 months of incarceration; and was ordered to pay $526,285.37 in restitution to CMS. DAB E-File Document No. 46a at 56-57, 61-62; IG Ex. 5 at 7-15.
• January 31, 2020 IG letter excluding Rana for ten years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($526,200); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2009 to about 2012); and the sentence included incarceration (24 months).  DAB E-File Document No. 46a at 65-66.

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• Nicole McTizic

• June 4, 2019 Judgment in a Criminal Case indicating that McTizic pleaded guilty to two counts in the Indictment, was sentenced to “Time Served,” and ordered to pay $114,690 in restitution to CMS.  DAB E-File Document No. 46a at 70-71, 75; IG Ex. 5 at 17-29, 31-32.
• November 29, 2019 IG letter excluding McTizic for seven years due to her conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($114,600); and the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2012 to about 2016).  DAB E-File Document No. 46a at 124-125. 

• Phillip Jones

• August 8, 2019 Judgment in a Criminal Case indicating that Jones was found guilty of 12 counts in the Indictment, was sentenced to 15 months of incarceration, and was ordered to pay $150,183.14 in restitution to CMS.  DAB E-File Document No. 46a at 89-91, 95-96; IG Ex. 5 at 17-32.
• December 31, 2019 IG letter excluding Jones for eight years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($150,100); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about June 2014 to about July 2015); and the sentence included incarceration (15 months).  DAB E-File Document No. 46a at 127-128.

•   Reuben Goodwin

• August 8, 2019 Judgment in a Criminal Case indicating that Goodwin was found guilty of 12 counts in the Indictment, was sentenced to 18 months incarceration, and was ordered to pay $150,183.14 in restitution to CMS.  DAB E-File Document No. 46a at 99-101, 105-106; IG Ex. 5 at 17-32.
• November 29, 2019 IG letter excluding Goodwin for eight years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($150,100); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2012 to about 2016); and the sentence included incarceration (18 months).  DAB E-File Document No. 46a at 120-121.

• Robert Sommerfeld

• May 20, 2019 Judgment in a Criminal Case indicating that Sommerfeld pleaded guilty to two criminal counts in the Indictment, was sentenced to four months of incarceration, and was ordered to pay $1,980,752 in

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• restitution to CMS.  DAB E-File Document No. 46a at 109-110, 114; IG Ex. 5 at 17-32.
• October 31, 2019 IG letter excluding Sommerfeld for ten years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($1,980,700); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2012 to about 2016); and the sentence included incarceration (four months).  DAB E-File Document No. 46a at 118-119.   

Petitioner’s cooperation assisted in the conviction and exclusion of eight individuals.  Therefore, this mitigating factor strongly supports a significant reduction in Petitioner’s length of exclusion. 

Petitioner argues that he also provided assistance in the conviction and exclusion of Azeem Meo.  P. Br. at 1-2.  Petitioner submitted a copy of a June 15, 2016 Indictment charging Azeem Meo on two criminal counts.  P. Ex. 7.  Further, the IG produced a copy of a February 21, 2017 Judgment in a Criminal Case showing that Azeem Meo pleaded guilty to three criminal counts, was sentenced to 18 months of incarceration, and was ordered to pay $161,708 in restitution to CMS and Missouri Medicaid.  DAB E-File Document No. 46a at 17-18, 22.  A July 31, 2017 IG letter stated that Azeem Meo was being excluded for ten years based on the criminal conviction and three aggravating factors.  DAB E-File Document No. 46a at 54-55. 

Petitioner also asserts that he was involved in two criminal cases involving Devon Golding.  P. Br. at 2; May 5, 2021 Motion to Include Discovery at 2; P. Ex. 8.  The documents provided by the IG indicate that a June 25, 2015 Judgment in Criminal Case shows that Dr. Golding was found guilty of five criminal counts, sentenced to four months of incarceration, and was ordered to pay $148,995.23 in restitution to Medicare and Medicaid.  DAB E-File Document No. 46a at 7-8, 11.  Further, a February 29, 2016 IG letter stated that Golding was excluded for eight years due to his conviction with the following aggravating factors:  financial loss to a government agency or program of more than $50,000 ($148,900); the acts resulting in conviction or similar acts were committed during a period of time that exceeded a year (from about 2007 to about 2011); the sentence included incarceration (four months); and the same set of circumstances involved in the conviction also was the basis for an adverse action by a federal, state, or local government agency or board (the Missouri Department of Social Services terminated Golding’s Missouri HealthNet provider numbers).  DAB E-File Document No. 46a at 15-16.

The IG responded to Petitioner’s argument, in part, as follows: 

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The cooperation factor “raises a high standard . . . [m]ere cooperation is not enough.”  Begum v. Hargan, No. 16-9624, 2017 U.S. Dist. LEXIS 193281 (N.D. Ill. Nov. 21, 2017).  The factor is only to be considered “where the law enforcement agency validated the person’s information by opening up a case investigation or by issuing a report.”  See Farzana Begum, M.D., DAB No. 2726, at 14 (2016) (citing 63 Fed. Reg. 46,676, 46,681 (Sept. 2, 1998)); Stacey R. Gale, DAB No. 1941 (2004) (same).  Here, Petitioner cannot establish that any information he provided in these other two cases led to one of the enumerated results in the regulation. See Gale, DAB No. 1941 (finding that the “ALJ erred in concluding that Petitioner’s cooperation with state officials was sufficient to establish [the cooperation factor] since Petitioner failed to demonstrate that her cooperation resulted in a new case being investigated”).

May 20, 2021 IG Response at 5.

I must agree with the IG.  Petitioner asserts in his brief that the Azeem Meo Indictment reflects information he provided to prosecutors.  P. Br. at 5-6; May 5, 2021 Motion to Include Discovery at 2.  However, Petitioner did not assert this as written testimony under oath or penalty of perjury.  Therefore, it is not evidence.  Further, although Petitioner discusses Azeem Meo in Petitioner’s Plea Agreement, that agreement was signed in 2018, long after Azeem Meo was convicted and excluded.  IG Ex. 5 at 7-12, 21, 35.  Perhaps this chronological problem can be explained; however, without testimony or other evidence, I cannot connect Petitioner to Azeem Meo’s Indictment.  Finally, the AUSA did not corroborate that Petitioner assisted in the case against Azeem Meo. 

Similar evidentiary issues preclude me from crediting Petitioner with assistance in Dr. Golding’s first criminal case.

I note that, while I cannot credit Petitioner with assistance in the Azeem Meo criminal case or in Dr. Golding’s first criminal case, this does not impact the final outcome as to the length of exclusion in this case.  Petitioner’s proof of extensive assistance resulting in eight convictions and exclusions is such that any additional cooperation would only have a marginal effect on the reasonableness of the length of exclusion.  There is only so much weight that any individual factor can have in each case and Petitioner has reached that point with the impressive effort and results achieved by his cooperation that has been proven in this case. 

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9. Petitioner did not prove that the District Court determined that he had a mental, emotional, or physical condition that reduced his criminal culpability.  Therefore, this is not a basis to mitigate the length of exclusion. 

Petitioner asserts that I should consider as a mitigating factor in his case that Petitioner used mind altering drugs, such as Alprazolam, which Petitioner had been taking for ten years.  Petitioner states that the District Court learned at the plea hearing about Petitioner’s use of that medication as well as use of alcohol.  Petitioner argues that the District Court should not have allowed Petitioner to enter into a plea agreement while being on a mind-altering drug and consuming alcohol at the same time.  Petitioner thought it important that he had been using that medication while he was committing the crimes for which he was convicted.  As proof that the District Court acknowledged this issue, Petitioner indicates that the District Court recommended placing Petitioner into a drug and alcohol program while in prison.  P. Br. at 6-7. 

The IG responded to this argument as follows: 

Lastly, to the extent Petitioner may be arguing for the application of the mitigating factor under 42 C.F.R. § 1001.102(c)(2), which allows a mitigating factor to be applied where “[t]he record in the criminal proceedings, including sentencing documents, demonstrates that the court determined that the individual had a mental, emotional or physical condition before or during the commission of the offense that reduced the individual’s culpability,” it is clear that this factor is not met in this case as the Court made no such finding.  Petitioner’s arguments surrounding his drug and alcohol use at the time of sentencing and any treatment for substance use are irrelevant to these proceedings without a finding by the Court that Petitioner “had a mental, emotional or physical condition before or during the commission of the offense that reduced [Petitioner’s] culpability.”  42 C.F.R. § 1001.102(c)(2); Patel v. Shalala, 17 F. Supp. 2d 662, 667–68 (W.D. Ky. 1998) (interpreting the factor in reference to dependence on alcohol or drugs).  

IG Reply at 5. 

It is true that the District Court asked Petitioner questions at the plea hearing to ascertain whether he capable of pleading guilty.  Petitioner informed the court that he took Alprazolam daily for anxiety and was addicted to it.  IG Ex. 4 at 5-6.  Petitioner told the court that Alprazolam did not make it more difficult for him to think.  IG Ex. 4 at 6.  Petitioner also identified other medications that he was taking; however, he stated that

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those medications did not make it more difficult to think clearly.  IG Ex. 4 at 6-7.  Finally, he told the court that he drank beer the previous day at a barbeque, but that he was not feeling the effects of that alcohol at the hearing.  IG Ex. 4 at 7. 

It does not appear to be true that the District Court recommended that Petitioner be sent to a prison with a drug and alcohol program.  Rather, the District Court recommended that the Bureau of Prisons screen Petitioner for participation in the Residential Drug Abuse Program.  IG Ex. 3 at 2. 

As the IG indicates, in order for Petitioner to receive mitigation based on mental, emotional, or physical condition, the record of the criminal proceeding must show that the court determined Petitioner had a mental, emotional, or physical condition before or during the commission of the offense that reduced Petitioner’s culpability.  42 C.F.R. § 1001.102(c)(2).  There is no such finding of a reduction in culpability by the District Court.  Therefore, Petitioner did not prove his addiction to Alprazolam is a mitigating factor in this case. 

10. Petitioner’s case comparisons do not support a reduced length of exclusion. 

Petitioner argues that a reduction in the length of exclusion is supported by comparisons with other cases decided by administrative law judges (P. Exs. 4-6) and by comparing his case to those of his codefendants.  P. Br. at 4; May 5, 2021 Motion to Include Discovery at 2. 

The IG responds to the case comparison argument as follows: 

Petitioner also argues that the length of his exclusion is unreasonable when compared to other excluded individuals. P. Br. at 4.  However, examples of comparisons of exclusions of other individuals are of limited value.  See Mohamed Basel Aswad, M.D., DAB No. 2741, at 13 (2016).  An ALJ’s assessment of reasonableness is “first and foremost case-specific” and “the reasonableness question ultimately turns on an analysis of the circumstances of each case.”  Id. at 10, citing Eugene Goldman, M.D., a/k/a Yevgeniy Goldman, M.D., DAB No. 2635, at 11 (2015).  The facts and circumstances of Petitioner’s exclusion clearly establish that a 10-year exclusion is reasonable.

IG Reply at 4-5. 

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I agree that case comparisons are of limited value.  However, I will briefly address Petitioner’s case comparisons before moving onto the primary analysis for the length of exclusion.

In Wayne Vincent Wilson, M.D, DAB CR4890 (2017), the individual was excluded for ten years based on aggravating factors that included $2.3 million in financial loss to government programs, seven years of duration in committing criminal acts, and 18 months of incarceration.  P. Ex. 4 at 5.  In comparison, Petitioner caused an additional financial loss of a million dollars and was incarcerated for an additional year.  These are significant differences in these cases and ones Petitioner’s mitigating factor could have roughly equalized.

In Cheryl Elizabeth Richardson, M.D., DAB CR682 (2000), the individual was excluded for ten years based on only two aggravating factors:  the individual caused $1.6 million in financial loss to the Medicaid program; and the individual was barred by a state licensing board from the practice of psychiatry.  P. Ex. 5 at 2-3.  The administrative law judge upheld the ten-year length of exclusion “within a reasonable range of possible exclusion periods given the circumstances of this case, in which two aggravating factors were present and no mitigating factors.”  P. Ex. 5 at 8.  In comparison, Petitioner’s three aggravating factors were all more aggravating than the two in this case.  Again, the IG could have reasonably considered Petitioner’s mitigating factor to equalize the aggravating factors in the present case to the case comparison.  However, this case comparison shows that even two aggravating factors can result in a ten-year exclusion. Therefore, this case, if anything, would potentially support a longer length of exclusion for Petitioner. 

In Michael Troyan, DAB CR5133 (2018), the individual was excluded for 15 years based on three aggravating factors, which included a four-year length of criminal activity, 60 months of incarceration, and an adverse action in the form of an exclusion from a Medicaid program.  P. Ex. 6 at 5.  Further, the individual also had a mitigating factor involving cooperation with authorities that resulted in the opening of an investigation, even though no convictions or exclusions resulted from it.  In comparison to the present case, Petitioner received half of the time of incarceration and provided much more effective assistance to prosecutors.  However, Petitioner’s length of criminal activity was longer and Petitioner’s criminal activity caused significant financial harm to the Medicare and Medicaid programs.  Again, the IG could reasonably conclude that Petitioner’s reduction in exclusion from 15 years to ten years was sufficient based on this case comparison. 

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11. The ten-year length of Petitioner’s exclusion is reasonable based on the aggravating factors and the mitigating factor in this case. 

Petitioner asserts that he should receive the minimum five-year length of exclusion primarily based on his cooperation with prosecutors, which led to at least eight convictions and exclusions.  See P. Br. at 7. 

When considering the length of exclusion, “[t]he evaluation does not rest on the specific number of aggravating or mitigating factors or any rigid formula for weighing those factors, but rather on a case-specific determination of the weight to be accorded each factor based on a qualitative assessment of the circumstances surrounding the factors in that case.”  Farzana Begum, M.D., DAB No. 2726 at 2 (2016) (emphasis added).  Further, the general purpose of an exclusion under 42 U.S.C. § 1320a-7 is “to protect federal health care programs and the programs’ beneficiaries and recipients from untrustworthy providers.”  Susan Malady, R.N., DAB No. 1816 at 9 (2002).  Ultimately, I must decide whether the ten-year exclusion is unreasonable (i.e., is it within a reasonable range for the length of exclusion based on the relevant factors).  42 C.F.R. § 1001.2007(a)(1)(ii); 57 Fed. Reg. 3298, 3321 (Jan. 29, 1992). 

Above, I performed that qualitative assessment of the aggravating factors and the mitigating factor.  Each aggravating factor was quantifiably well in excess of the minimum amounts required to increase the length of exclusion.  Petitioner’s sentence is long and reflects the severity of his crimes.  The restitution is extremely high, showing the extent of the harm his crimes caused to the Medicare and Medicaid programs.  The long period of his criminal conduct shows his proclivity to commit that conduct.  The quantity and type of convictions show the threat Petitioner poses to federal health care programs.

The facts in this matter related to Petitioner’s cooperation are particularly troubling because Petitioner first cooperated with prosecutors in November 2012, but at that same time, Petitioner launched a new conspiracy to engage in a large and complicated illegal health care-related kickback scheme.  IG Ex. 2 at 13-27; P. Ex. 12.  As the IG argues:  

Importantly, even after his cooperation, the Court sentenced Petitioner to 30 months of incarceration, a significant indication of untrustworthiness.  The length of incarceration in combination with a substantial loss to the Medicare and Medicaid programs of $3,469,810 over a substantial period of time unquestionably demonstrates the reasonableness of the 10-year period after considering the mitigating factor.

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IG Reply at 4.  It is important that despite Petitioner’s extensive cooperation, he received a lengthy prison sentence.  Certainly, continuing to engage in illegal behavior after agreeing to assist prosecutors seems inconsistent and is disconcerting. 

Further, in the Guilty Plea Agreement, Petitioner acknowledged that he was an organizer or leader of a criminal activity that involved five or more participants or was extensive and abused a position of public or private trust.  IG Ex. 2 at 28.  Such an admission is relevant to the ultimate issue as to the length of exclusion.  However, on Petitioner’s side is that the prosecution agreed in the Guilty Plea Agreement that Petitioner “clearly demonstrated acceptance of responsibility and timely notified the Government of the defendant’s intention to plead guilty.”  IG Ex. 2 at 28.  Further, prosecutors believed that Petitioner provided substantial assistance involving the prosecution of his eight co-defendants and prosecutors filed a Section 5K1.1 motion for a downward departure in sentencing.  IG Ex. 6 at 1.  There is no doubt that Petitioner was a major factor in those prosecutions. 

Despite this mitigating factor, which weighs heavily in Petitioner’s favor, the question that still must be asked is whether Petitioner is untrustworthy to participate in federal health care programs.  Stated another way, can Petitioner be trusted with the right to provide services to patients under federal health insurance programs and to bill such programs? 

I conclude that the IG’s decision to reduce the length of exclusion from 15 years to ten years based on Petitioner’s cooperation with prosecutors is not unreasonable and fits within a reasonable range appropriate for this case.  The IG halved the length of exclusion that it imposed based on its discretionary authority, over and above the mandated five years.  The IG took Petitioner’s assistance to prosecutors seriously.  However, the aggravating factors in this case weigh heavily against allowing Petitioner to participate in federal health care programs too soon.  Even with his assistance, Petitioner received more prison time than all of the individuals who he helped to prosecute.  This shows the extent to which the District Court believed Petitioner was culpable and reflects, as the IG has argued, a high criminal penalty in the face of receiving a reduction for cooperation. 

Finally, in this proceeding, Petitioner has repudiated the admissions he made in his Guilty Plea Agreement and appears to believe himself innocent of the crimes he committed.  Under oath he admitted to all of those matters in the Guilty Plea Agreement, but in this proceeding, he contradicts those admissions.  Therefore, Petitioner either made misrepresentations to the District Court under oath or is not telling the truth in this proceeding.  Such a situation does not support the notion of trustworthiness.  Based on the record of this case, I cannot say the IG acted unreasonably in imposing a ten-year length of exclusion. 

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12. The effective date of the exclusion is 20 days after the September 30, 2019 exclusion notice in this case. 

Petitioner asserted in his hearing request that his Medicare and Medicaid billing privileges were suspended in 2014 and that his exclusion should be effective from 2014.  Hearing Req. at 2. 

I am without authority to change the effective date of the exclusion.  The Social Security Act states that an exclusion will become effective at such time as may be specified in the regulations.  42 U.S.C. § 1320a-7(c)(1).  The regulations state that an exclusion is effective 20 days after the date on the notice of exclusion.  42 C.F.R. § 1001.2002(b).

In the present case, the exclusion notice is dated September 30, 2019.  IG Ex. 1 at 1.  Therefore, the effective date of the exclusion is 20 days after that date. 

VI.  Conclusion

I affirm the IG’s determination to exclude Petitioner for ten years from participating in all federal health care programs under 42 U.S.C. § 1320a-7(a)(1).